STATE OF OREGON 


LAWS 


Pertaining to 

Mines and Mining 


Compiled by 

F. W. BENSON 

Secretary of State 


1911 



SALEM^ OREGON 

WILLIS S. DUNIWAY, STATE PRINTER 
1911 

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STATE OF OREGON 


LAWS 

Pertaining to 

Mines and Mining 


Compiled by 

F. W. BENSON 

Secretary of State 


1911 




SALEMj OREGON 

WILLIS S. DUNIWAY, STATE PRINTER 

1911 










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OREGON LAWS 


Pertaining to 

Mines and Mining 

As Contained in Lord’s Oregon Laws, and the Session Laws 

of 1911 


§ 8. Chinamen Not to Hold Real Estate or Work Mining 
Claims. 

No Chinaman, not a resident of the State at the adoption of 
this constitution, shall ever hold any real estate or mining 
claim, or work any mining claim therein. The legislative as¬ 
sembly shall provide by law in the most effectual manner for 
carrying out the above provision. [Article XV, Constitution 
of Oregon.] 

Chapman v. Toy Long, 4 Saw. 36, intimates that under the treaty of 1868, 
Article VI (Pub. Treaty, 148), that a mining regulation which forbids Chinamen 
from working claims for themselves or others, as well as this clause of the State 
constitution are in direct conflict with such treaty, but the question was not judi¬ 
cially passed upon: Chapman v. Toy Long, 4 Saw. 28. 

§ 1975. Injury to Coriduit, Dam, Etc.—Malicious Drawing Off 
of Water. 

If any person shall maliciously, wantonly, or willfully cut, 
break down, injury, destroy, or remove any water ditch, canal, 
flume, trench, pipe, or reservoir, or any other thing used for 
conveying, receiving, or holding water used or designed for 
mining, irrigating, manufacturing or domestic purposes; or any 
dam, reservoir, gate, flume, dashboard, or other appurtenance 
used or designed for any of said purposes, or any wheel, wheel 
gear, or machinery of any mill or manufactory, or machinery 
used for pumping water for any of said purposes, or shall 
maliciously or without color of right obstruct, draw off, or use 
any portion of the water flowing through or contained in such 
water ditch, canal, trench, pipe, dam, or reservoir, or any mill 
pond or other receptacle used for containing such water, said 
person, upon conviction thereof, shall be punished by a fine of 
not less than $10 nor more than $500. 

§ 1981. Mining Claim Monuments, Injury to. 

If any person or persons shall willfully and maliciously de¬ 
face, remove, pull down, injure, or destroy any location stake, 



[4] 

side post, corner post, land-mark, or monument, or any other 
legal land boundary monument in this State, designating or in¬ 
tending to designate the location boundary or name of any 
mining claim, lode, or vein of mineral, or the name of the dis¬ 
coverer, or date of discovery thereof, the person or persons so 
offending shall be guilty of a misdemeanor, and on conviction 
thereof shaill be punishable by a fine of not more than $500, or 
by imprisonment in the county jail for a period of not more 
than six months, or by both such fine and imprisonment, in the 
discretion of the court; provided, that this act shall not apply 
to abandoned property. 

§ 1989. Trespass on Mming Claims. 

Any person who shall break or rob in any manner, or who 
shall attempt to break or rob, any flume, rocker, quartz mill, 
quartz vein, or lode, bedrock sluice, sluice box, or mining claim 
not his own, or who shall trespass upon such mining claim 
with the intent to commit a felony, shall, upon conviction 
thereof, be punished by imprisonment in the penitentiary of 
this State not less than one nor more than five years, or by fine 
not less than $100 nor more than $1,000, or by both such im¬ 
prisonment and fine, as the court or judge thereof may direct. 

§ 2139. Disposing of Liquor Near Mine Unlawful. 

It shall be unlawful for any person or persons to sell or in 
anywise dispose of any spirituous or malt or intoxicating 
liquors upon or within one mile of any quartz or placer mine in 
active operation within this State; provided, that this act does 
not apply to incorporated cities and towns. 

§ 2140. Penalty for Offenses Under Preceding Section. 

Any person or persons violating the provisions of this act 
shall be deemed guilty of a misdemeanor, and upon conviction 
thereof shall be fined in any sum not less than $50 nor more 
than $200, and each and every day that any person or persons 
shall sell or dispose of any liquors contrary to any provisions 
of this act shall constitute a separate offense, and shall be pun¬ 
ished accordingly. 

§ 3940. Rights of Way for Water Ditches and Pipes. 

A right of way for the construction of a water ditch to be 
used for irrigation, manufacturing, or mining purposes, ditches 
or water pipes for conveying water to cities and towns for 
domestic purposes, or for the extinguishment of fires, is hereby 
granted to any individuals or corporations who may construct 
such water ditches or water pipes over any of the State lands 


[5] 


belonging to the State of Oregon—tide, swamp, and overflowed 
lands, and school lands—for a distance on each side of said 
ditches or water pipes of twenty-flve feet. 

Cited in Parkersville District v. Wattier, 4 8 Or. 339 (86 Pac. 775.) 

§ 3941. Copy of Notes of Survey of Ditches, Etc., to Be Filed. 

It shall be the duty of said railroad corporation or water 
C(3mpany, or individuals constructing said railroads, water 
ditches, or water pipes, to file a copy of the field notes of the 
survey of such railroads, ditches, or water pipes with the 
Secretary of State of the State of Oregon, showing the location 
of said railroad, water ditch, or water pipe. 

§ 5058. Hours of Labor in Underground Mines. 

No person who operates any underground mine yielding gold 
or silver or copper or lead or other metal shall permit or re¬ 
quire any person to work in such underground mine for more 
than eight hours in any twenty-four hours and the hours of 
employment in such employment or work day shall be consecu¬ 
tive excluding, however, any intermission of time for lunch or 
meals; but, in the case of emergency, where life or property is 
in imminent danger, persons may work in such underground 
mines for a longer time during the continuance of the exigency 
or emergency. This act shall not apply to mines in their first 
stages of development, such as tunnel work to a length of 200 
feet, or shaft work to a depth of 150 feet, or to any surface 
excavation. 

§ 5059. Penalty for Violations. 

Any person, persons, body corporate, general manager or 
employer who shall violate or cause to be violated any of the 
provisions of Section 5058 of this act, shall be deemed guilty of 
a misdemeanor, and upon conviction shall be punished by a fine 
of not less than $50, nor more than $300, or by imprisonment 
of not less than thirty days, nor more than three months. And 
the court shall have discretion to impose both fine and impris¬ 
onment as herein provided. 

§ 5127. Mining Claims, Plurality of—When and to What Ex¬ 
tent Allowed. 

Any person may hold one claim by location, as hereinafter 
provided, upon each lead or vein, and as many by purchase as 
the local laws of the miners in the district where such claims 
are located may allow; and the discoverer of any new lead or 
vein not previously located upon shall be allowed one additional 
claim for the discovery thereof; nothing in this section shall be 


[ 6 ] 


so construed as to allow any person not the discoverer to locate 
more than one claim upon any one lead or vein. 

§ 5128. Location of Claim — Notice, What to Contain — Bound¬ 
aries, Hoiv Marked. 

Any person, a citizen of the United States, or one who has 
declared his intention to become such, who discovers a vein or 
lode of mineral-bearing rock in place upon the unappropriated 
public domain of the United States within this State, may 
locate a claim upon such vein or lode so discovered, by posting 
thereon a notice of such discovery and location, which said 
notice shall contain: First, the name of the lode or claim; 
second, the name or names of the locator or locators; third, the 
date of the location; fourth, the number of linear feet claimed 
along the vein or lode each way from the point of discovery, 
with the width on each side of the said lode or vein; fifth, the 
general course or strike of the vein or lode as nearly as 
may be, with reference to some natural object or permanent 
monument in the vicinity thereof, and by defining the bound¬ 
aries upon the surface of each claim so that the same may be 
readily traced. Such boundaries shall be marked within thirty 
days after posting of such notice by six substantial posts, pro¬ 
jecting not less than three feet above the surface of the ground, 
and not less than four inches square or in diameter, or by sub¬ 
stantial mounds of stone, or earth and stone, at least two feet 
in height, to-wit: One such post or mound of rock at each 
corner and at the center ends of such claims. 

In making a mining location under this section and Section 5129, a failure to 
place monuments at the center ends of the ground claimed is a fatal omission, as 
is a neglect to attach to the recorded copy of the location notice an affidavit that 
the required improvement work has been done: Wright v. Lyons, 45 Or. 167 
(17 Pac. 81.) 

This and the succeeding section, requiring locators of a lode claim to establish 
the center end posts or monuments of the claim in a particular manner, and to 
attach to the copy of notice of location filed with the clerk of the county wherein 
the claim is situated an affidavit of proof of the work required to be done by 
Section 5130, as conditions precedent to the establishment of a valid claim, are 
not in conflict with Section 2324, Rev. Stat. U. S., requiring that the location of 
a claim shall be distinctly marked on the ground, since the latter section does not 
specify how the marking shall be done, while the former supplies the omitted 
information. Wright v. Lyons, supra. 

Under Section 2320, Rev. Stat. U. S., and this section, a valid right to a min¬ 
ing claim is initiated by the discovery by a qualified person of a vein of mineral¬ 
bearing rock in place on vacant land of the United States, and the appropriation 
thereof by such person by i:)erforming the acts prescribed in those statutes. 
Sharkey v. Candiani, 48 Or. 112 (85 Pac. 219.) 

A claim to mining ground void because no mineral vein was discovered there¬ 
on prior to the posting of notices of location, will be validated by a subsequent 
discovery of such a vein in place within such claim, if no adverse rights have 
accrued in the meantime. Sharkey v. Candiani, supra. 

No location can be made on land already patented unless it has been aban¬ 
doned so that it has again become part of the unappropriated public domain: 
Sharkey v. Candiani, supra. 

This section was intended only as a means of determining the rights of con¬ 
flicting claimants, and the boundaries of the claim may be marked at any time 
before conflicting rights attach : Sharkey v. Candiani, supra. 

Where, at the time of the location of certain mining claims, notices were 
posted thereon, and subsequently recorded in the record marked by monuments 
so that the boundaries could be readily ascertained, the location was valid • 
Risch V. Wiseman, 36 Or. 4 84 (59 Pac. 1111.) 'aim. 


[7] 


Mineral land that has been regularly located and has for many years been in 
possession of persons claiming to own it is not public land subject to location, 
w here plaintiff had held, occupied and been in possession of a mining claim 
undf^ color of title, in pursuance of law and the local rules and regulations of 

more than twenty years prior to the attempted location 
of the defemlants, such claims were not public mineral lands of the United States, 
and plaintiff could maintain a suit to enjoin defendant’s location, though there 
was no evidence of the transfer of the original locator’s title to plaintiff : Risch 
V. vviseman, supra. 

The discoverer of a lode or vein of rock bearing precious metals must, in the 
absence of some local rule of miners or legislative regulation allowing time for 
exploration, immediately locate his claim by distinctly marking the same on the 
ground so that its boundaries can be readily ascertained, in order to hold it as 
against a subsequent valid location peaceably made: Patterson v. Tarhell, 26 Or. 
29 (37 Pac. 7 6.) 

Neither the act of Congress nor the legislative regulations of this State pro¬ 
vide any specific time after discovery within which the location or appropriation 
shall be made, but it is clear that until the boundaries are distinctly marked on 
the ground, and, notice posted on the vein or lode, the location is not complete, 
nor the law complied with. A discoverer of a vein or lode who proceeds dili¬ 
gently, in good faith, to complete his location by marking its boundaries on the 
ground, and otherwise complying with the law, will no doubt be protected in his 
rights as against a subsequent locator of the same ground, but unless he does so 
proceed, he will not be so protected : Patterson v. Ta^'bell, supra. 

The right of an alien to inherit a mining claim located upon government land 
as against every other person but the United States is determined by the laws of 
the state in which the claim is located: Lohman v. Helmer, 104 Fed. 178. 

§ 5129. Recording Copy of Notice—Location Work. 

Such locator shall, within sixty days from and after the 
posting of the location notices by him upon the lode or claim, 
file for record with the recorder of conveyances, if there be 
one, who shall be the custodian of mining records and miners’ 
liens, otherwise with the clerk of the county wherein the said 
claim is situated, a copy of the notice so posted by him upon 
the lode or claim, having attached thereto an affidavit showing 
that the work required to be done by Section 5130 has been 
done and performed, and shall pay to the recorder or clerk a 
fee of ^1.00 for such record thereof, which said sum the 
recorder or clerk shall immediately pay over to the treasurer 
of such county and shall take his receipt therefor, as in case of 
other county funds coming into the possession of such officer. 
Such recorder or clerk shall immediately record such location 
notice and the affidavit annexed thereto. No location notice 
shall be entitled to record, or recorded, until the work required 
by Section 5130 has been done and the affidavit in proof there¬ 
of is attached to the notice to be recorded. 

See note to Section 5128. 

Under this section, it is not essential to the validity of a location that the 
record should be a literal copy of the notice posted on the claim, but it is suffi¬ 
cient if it is a substantial copy: Oregon King Min. Co. v. Brown, 119 Fed. 48. 

A recorded notice which does not describe the boundaries of the claim with 
sufficient certainty so that they could be established on the ground is ineffectual: 
Strickland v. Commercial Min. Co., 55 Or. 4 8 (104 Pac. 965.) 

^ 5130. Work on Claim, What Required and Within What 
Time.' 

Before the expiration of sixty days from the date of the 
posting of the notice of discovery upon his claim as aforesaid, 
and before recording the notice of location as required by 


[ 8 ] 


Section 5129, the locator must sink a discovery shaft upon the 
claim located to a depth of at least ten feet from the lowest 
part of the rim of such shaft at the surface, or deeper if neces¬ 
sary, to show by such work a lode or vein of mineral deposit in 
place. A cut or crosscut or tunnel which cuts the lode at a 
depth of ten feet, or an open cut at least six feet deep, four feet 
wide and ten feet in length along the lode from the point where 
the same may be in any manner discovered, is equivalent to 
such discovery shaft. Such work shall not be deemed a part 
of the assessment work required by the revised statutes of the 
T'nited States. The locator, or some one for him who did work 
upon and has knowledge of the facts relating to the sinking of 
the discovery shaft, shall make and attach to the copy of the 
notice of location to be recorded an affidavit showing the com¬ 
pliance by the locator with the provisions of this section, which 
affidavit shall be recorded with such copy of the location notice. 

§ 5131. Abandoned Claims Deemed Unappropriated Mineral 
Lands. 

Abandoned claims shall be deemed unappropriated mineral 
lands, and titles thereto shall be obtained as in this act speci¬ 
fied, without reference to any work previously done thereon. 

When the appearance of a mining claim shows an abandonment for many 
years, and no monuments mark the boundaries, another location may be made 
on the presumption that all necessary rights have been relinquished: Strickland 
V. Commercial Min. Co., 55 Or. 48 (104 Pac. 965.) 

§ 5132. Mining Claims Are Real Estate. 

All mining claims, whether quartz or placer, shall be real 
estate, and the owner of the possessory right thereto shall have 
a legal estate therein within the meaning of Section 325. 

A mining claim being real estate, upon the death of the owner passes at on<?<^ 
to the heir, when such claim is not held or required for any purpose of the 
administration: Lohmann v. Helmer, 104 Fed. 178. 

Prior to the passage of this statute, it was held that the locator of a quartz 
mine, prior to the time he became entitled to a patent, has a mere right of pos¬ 
session or possessory title, which is valuable and which will be protected by law, 
but which is not real estate or an interest in land: Duffy v. Mix, 24 Or. 265 (33 
Pac. 807) ; Allen v. Dunlap, 24 Or. 229 (33 Pac. 675) ; Herron v. Eagle Min. Co.. 
37 Or. 157 (61 Pac. 417.) 

§ 5133. Taxation, Claim Exempt from, Prior to Patent. 

P.rior to the obtaining of patent from the general govern¬ 
ment of the United States to such claim, the same shall be ex¬ 
empt from taxation, except as to the improvements, machinery 
and buildings thereon. 

§ 5134. Conveyances, Subject to Provisions Relating to Other 
Real Propeidy. 

All conveyances of mining claims, or of interests therein, 
either quartz or placer, shall be subject to the provisions gov- 


[9] 

erning transfers and mortgages of other realty as to execution, 
recordation, foreclosure, execution sale, and redemption there¬ 
under, but such redemption by the judgment debtor must take 
place within sixty days from date of confirmation, or such 
right is lost. 

Any book kept by the propei’ officer as part of the records of his office, in 
which are recorded instruments affecting mines, is a book of “mining records” 
under Section 7444, providing that miners’ liens shall not attach to the interest of 
the owner if the work was done for a lessee whose lease was recorded in the 
“mining records” of the county before the work began. If no particular book is 
designated in which an instrument must be recorded, it will be sufficient to record 
it in any book kept by the recording officer for that purpose; Slover v. Bailey, 
49 Or. 426 (90 Pac. 665.) 


§ 5135. Redemption, Amount Required to Be Paid On. 

In case of redemption from sale under judgment or decree, 
the redemptioner shall pay such sum or sums as are now 
required by law for redemption under execution sale, and such 
additional sum as may have been expended upon the property 
so redeemed by the purchaser under execution, or his assigns, 
in order to keep alive the possessory right thereto after such 
execution sale, not exceeding the sum of $100 for each claim, 
with ten per centum interest thereon from date of such expen¬ 
diture or expenditures. 

§ 5136. Ditches and Mining Flumes Real Property — Abandon¬ 
ment Of. 

Ditches and mining flumes, permanently affixed to the soil, 
are hereby declared to be real estate; provided, that whenever 
any person, company, or corporation, being the owner of any 
such ditch, flume, and the water right appurtenant thereto, 
shall cease to operate or exercise ownership over said ditch, 
flume, or water right, for a period of five years, and every 
person, company, or corporation who shall remove from this 
State with the intent or purpose to change his or its residence, 
and shall remain absent one year without using or exercising 
ownership over such ditch, flume, or water right, shall be 
deemed to have lost all title, claim, and interest therein. 

An interest in a ditch used for mining purposes cannot be transferred, except 
by deed: Mattis v. Hosmer, 37 Or. 531, 535 (62 Pac. 17, 632). 

Where a person has not used for the purpose of conveying water a mining 
ditch for eight or ten years, and no acts of ownership have been exercised 
thereover, there was an abandonment of such ditch: Ison v. Nelson Min. Co., 
47 Fed. 202. 

There can be no abandonment, however, without some act of the will and 
an intent to abandon; such intent may be inferred from the declaration and 
acts of the party charged with the abandonment, and where, after such abandon¬ 
ment, the party fails to exercise acts of ownership within a year his right 
is lost: Dodge v. Harden, 7 Or. 457. 

No overt act is necessary to constitute an abandonment; it results from 
an exercise of the will: Sharkey v. Candiani, 48 Or. 112 (85 Pac. 219). 

No location can be made on land already patented unless it has been 
abandoned so that it has again become part of the unappropriated public 
domain: Sharkey v. Candiani, supra. 

The possible fluctuations in the value of mining claims resulting from dis¬ 
coveries on other claims render it important that claimants should promptly and 


[ 10 ] 




continuously assert any right they may think they have in locations, and a 
failure to resent with reasonable promptness a trespass actually occupied by 
the trespasser: Sharkey v. Candiani, supra. 

An abandonment of a claim to real property does not have the effect of 
transferring the title to any one : Sharkey v. Candiani, supra. 

Where the persons in possession of a mining claim were experienced miners 
and familiar with the usual methods of marking the boundaries of mining 
claims, with which a subsequent adjoining locator was not familiar, and for 
many months saw such subsequent locator working on an adjoining claim 
without objection until he had expended a large sum of money and discovered 
valuable ore, when they claimed that he was trespassing on their prior location, 
are equitably estopped from maintaining such claim on the ground that they 
abandoned that part of the prior location overlapped by the subsequent locator, 
the means of information not being equal: Sharkey v. Candiani, supra. 

§ 5137. Act Applies to Locations Subsequent to Last Day of 
December, 1898. 

Any and all locations or attempted locations of quartz min¬ 
ing claims within this State subsequent to the thirty-first day 
of December, 1898, that shall not comply and be in accordance 
with the provisions of this act shall be null and void. 

§ 5138. Grub-Staking Contracts Must Be in Writing, Require¬ 
ments Of. 

All contracts of mining co-partnership, commonly known 
as “grub-staking,’' shall be in writing, and filed for record 
with the recorder of conveyances of the county wherein loca¬ 
tions thereunder are made. Such contracts must contain, first, 
the names of the parties thereto, and, second, the duration 
thereof; otherwise, such contracts shall be null and void. 

§ 5139. Mines, Location Of, Subject to What Prior Right. 

Any location of any mining claim made upon any natural 
stream, or contiguous or near to any placer mine, or upon 
or below the dump of any placer mine, shall be subject to 
the prior right of all mines in operation prior to the making 
of such location, to discharge debris, gravel, earth, and slickens 
as the same was discharged, or may be discharged, at the 
time of making such subsequent location of mining claim or 
claims. 

§ 5140. Correction of Defective Notice — Effect. 

If at any time the locator of any mining claim heretofore or 
hereafter located, or his assigns, shall apprehend that the 
original notice of location of said mining claim was defective, 
erroneous, or that the requirements of the law had not been 
complied with before the filing of the said notice, such locator, 
or his assigns, may post and file for record in the manner 
now provided by law, an amended notice of the said location 
which shall relate back to the date of the original location; 
provided, that the posting and filing of such amended notice 
of location shall not interfere with the existing rights of others 
at the time of posting such amended notice of location. 



[ 11 ] 


§ 5141. Co-Oivners of Mine May Pe^'form Assessment Work. 

Whenever any quartz or placer mines shall be owned by 
one or more persons, companies, or corporations, or when 
any person, company or corporation shall own any quartz or 
placer mines, in common with any other person, company, or 
corporation, any such person, company, or corporation owning 
an interest in said mine or mines, whether said interest be 
legal or equitable, shall have the right to perform the annual 
assessment work required by the laws of the United States 
and of the State of Oregon to be performed upon such mine 
or mines; such work, when so performed, shall, when it com¬ 
plies with the laws of the United States and of the State of 
Oregon, protect such mine or mines from re-location. 

§ 5142. Notice and Demand Upon Delinquent Co-Owners. 

Upon the failure of any one of several co-ov/ners of such 
mine or mines to contribute his proportion of the expenditures 
required in such assessment work, or to perform or pay for 
his or their proportion thereof, the co-owner or co-owners of 
such mine or mines who have performed or caused to be per¬ 
formed the said labor or assessment work, may, at the expira¬ 
tion of the year for which such assessment work was per¬ 
formed, give such delinquent co-owner or co-owners notice 
that the assessment work for said year has been performed, 
stating by whom performed, and the amount of work per¬ 
formed, and the dates between which the same was performed, 
together with a statement of the amount due from said 
delinquent co-owner or co-owners for his or their proportion 
of said assessment work, and requiring said delinquent co¬ 
owner or co-owners, within ninety days from the date of the 
service of said notice, to pay to the co-owner or co-owners 
who performed or caused to be performed such assessment 
work, his or their proportion thereof. Such notice shall further 
state that if such delinquent co-owner or co-owners shall fail 
or refuse to contribute his or their proportion due for the 
said assessment work, his or their interest in said mine or 
mines will become the property of such co-owner or co-owners 
who have performed or caused to be performed such assess¬ 
ment work. 

§ 5143. Form and Service of Such Notice. 

Such notice shall be in writing and signed by the co-owner 
or co-owners who performed or caused to be performed such 
assessment work, and shall be served upon said delinquent 
co-owner or co-owners, personally, by the sheriff of the county 
in which said mines are situate, if said delinquent co-owner 
or co-owners be within said county. If said delinquent co- 


[ 12 ] 


owner or co-owners can be found in any other county within 
the State of Oregon, then such notice shall be served by the 
sheriff of such county in which said delinquent co-owner or 
co-owners then are. If said delinquent co-owner or co-owners 
cannot be found within the State of Oregon, or if said delin¬ 
quent co-owner^ or co-owners be at the time of giving said 
notice without the State of Oregon, then the service of said 
notice shall be made by the publication thereof in the weekly 
newspaper published in said county nearest to where said 
/nines are situate; if there be two or more papers published 
in said county at the same distance from said mines, then the 
co-owner or co-owners giving such notice may elect as to which 
paper said notice shall be published in. If there be no weekly 
newspaper published within said county, then service of said 
notice shall be made by publication in any other weekly 
newspaper within the State of Oregon, published nearest the 
said mines; said notice shall be published at least once a week 
for a period of ninety days from and after the first publica¬ 
tion thereof. 

§ 5144. Return and Proof of Service. 

If said notice shall be served by any sheriff of this State, 
as herein provided, such sheriff shall make return thereof by 
filing such notice with his return showing such service with 
the county recorder for the county within which such mine 
or mines are situate, if there be a county recorder in said 
county; and, if not, he shall file the same with the county 
clerk in such county in which said mine or mines are situate. 
If personal service of such notice cannot be had, as herein 
provided, proof of such service shall be made by the filing with 
the county recorder of the county in which said mine or mines 
are situate, if there be a county recorder, and if there be no 
county recorder in said county, then by filing with the county 
clerk of said county said notice as published, attached to an 
affidavit, made by the printer, foreman, or publisher of such 
newspaper, to the effect that such newspaper is of general 
circulation throughout said county, is published weekly, and 
that such notice was published at least once a week in said 
newspaper for a period of not less than ninety days from and 
after the first publication thereof. 

§ 5145. Interest of Delinquent Co-Oivners to Vest in Others. 

That at the expiration of ninety days from the date of the 
personal service of said notice upon said delinquent co-owner 
or co-owners, or, if at the expiration of ninety days from the 
date of the last publication of said notice, said delinquent 
co-owner or co-owners shall not have paid to the co-owner or 


[13] 


co-owners who performed or caused to be performed such 
assessment work, his or their proportion thereof, then the title 
to the interest of said delinquent co-owner or co-owners in 
said mine or mines shall be immediately vested in the co-owner 
or co-owners who performed or caused to be performed such 
assessment work. 

§ 5146. Co-Owners Performing Work to File Notice—Proof of 
Service and of Non-Payment—Certificate of Oivner- 
^hip. 

The co-owner or co-owners who performed such assessment 
work shall be entitled to file with the county recorder of the 
county where said mines are situate, or, if there be no county 
recorder in said county, then with the county clerk of said 
county, his or their affidavit or affidavits, to the effect that 
said payment has not been made; and upon the filing of such 
affidavit or affidavits said county recorder or county clerk, 
as the case may be, shall record such notice, proof of service 
thereof, and affidavit or affidavits in a book kept by him for 
such purpose, and shall then and there issue to such co-owner 
or co-owners who shall have performed or caused to be per¬ 
formed such assessment work, a certificate to the effect that 
he has filed and recorded said notice, proof of service, and 
affidavit or affidavits of non-payment, and to the effect that 
such co-owner or co-owners who have performed or caused 
to be performed such assessment work, have become and are 
the owners of all of the right, title, and interest of said 
delinquent co-owner or co-owners of said property. 

§ 5147. Fee for Issuance of Certificate. 

Such certificate shall not be issued until such co-owner or 
co-owners entitled to the same shall have paid to the said 
county recorder or county clerk, as the case may be, a fee 
of $1.00 for such certificate. 

§ 5148. Counter-Affidavits—Suit Upon Filing Same — Decree. 

If, prior to the issuing of such certificate, there shall be filed 
with said county recorder or county clerk an affidavit or 
affidavits to the effect that such payment has not been made 
by such delinquent co-owner or co-owners, and there shall also 
within said time have been filed with said county recorder or 
county clerk an affidavit by the delinquent co-owner or co¬ 
owners that such payment has been made, then said county 
recorder or county clerk, as the case may be, shall not issue 
such certificate, but such parties shall be left to establish such 
fact by suit to quiet the title to said premises, and if, in such 
suit, it shall appear either that the assessment work was not 


[14] 

performed by the co-owner or co-owners claiming to have 
performed the same, or that the delinquent co-owner or co¬ 
owners have performed or paid his or their proportion of said 
assessment work, then a decree shall be entered in said suit 
to that effect; but if, in said suit, it shall be established that 
said assessment has been performed by or has been caused 
to be performed by the co-owner or co-owners claiming to 
have performed, or caused the same to have been performed, 
and that the delinquent co-owner or co-owners have not per¬ 
formed their proportion thereof, or have not paid their pro¬ 
portion thereof, then a decree shall be entered therein decree¬ 
ing the co-owner or co-owners who have performed said 
assessment work to be the owner or owners of all of the 
interest of said delinquent co-owner or co-owners in said 
premises, which decree shall be entitled to record in the mis¬ 
cellaneous records kept by the county recorder or county clerk 
in said county, and shall be indexed in the index with the 
record of deeds and mining conveyances for said county. 

§ 5149. Certificate, Force and Effect. 

Such certificate, when issued as herein provided, shall be 
equivalent to a deed from such delinquent co-owner or co¬ 
owners of all of their interests in and to all of said mines 
described in such notice, and shall convey the interest of the 
delinquent co-owner or co-owners in said premises to the 
co-owner or co-owners who performed or caused to be per¬ 
formed such assessment work; such certificate may be intro¬ 
duced in evidence in any cause where the ownership of said 
property may become material, and when so introduced shall 
have the same force and effect as would a duly executed and 
delivered deed from such delinquent co-owner or co-owners 
of said premises. 

§ 5150. Certified Copy of Certificate, Notice and Retiiim — 
Effect of Record. 

A certified copy of such certificate, and the certified copy 
of such notice and return when made and certified to by such 
county recorder or county clerk, as the case may be, shall be 
admissible in evidence in any trial where it is material to 
establish the proof of service of such notice or the ownership 
of said property. Such certificate, when given by such 
recorder, or county clerk, shall be entitled to record in the 
office of the officer issuing the same, upon the payment of the 
same fees as are required for the recording of said mining 
conveyances; such county clerk or county recorder, as the case 
may be, shall keep a record book, showing the record of such 
certificates as shall be recorded by him, and upon recording 


[15] 

the same, shall index the said certificates in a book kept by 
him for that purpose, and shall likewise index the same in 
the deed records of mining conveyances kept by him. Such 
indexing and recording shall have the same force and effect 
as the indexing of deeds to other real property, and shall give 
like constructive notice. 

.§ 5151. Disposal of Fees. 

All fees collected under this act shall be the property of 
the county in which the same are collected, and shall be 
accounted for by the officer collecting the same, the same as 
other recording fees are accounted for. 

§ 5152. Mine Bell Signals, Code Of. 

From and after the passage of this act the following bell 
signals shall be used in all mines in the State of Oregon operat¬ 
ing a steam, electrical, gasoline, or other hoisting plant, to wit: 


1 bell .hoist (see rule 2) 

1 bell . stop (see rule 2) 

2 bells . lower (see rule 2) 

2- 2 bells .calls top man to collar of shaft 

3 bells.man to be moved, run slow (see rule 2) 

3- 1 bells.man to be hoisted, run slow (see rule 2) 

3- 2 bells.man to be lowered, run slow (see rule 2) 

4 bells.move bucket or cage very slow 

4- 1 bells . start pump 

4-2 bells . stop pump 

1- 3 bells .start air compressor 

2- 3 bells .stop air compressor 

5 bells .send down tools (see rule 4) 

6 bells .send down timbers (see rule 4) 

7 bells . accident 

1- 4 bells. foreman wanted 

2- 2-2 bells.change bucket from ore to water, or vice versa 

3- 2-1 bells .ready to shoot in shaft (see rule 3) 


Engineer’s signal that he is ready to hoist, raise bucket or 
cage two feet and lower it again (see rule 3). The bucket or 
cage must be raised from station six feet when not in use, 
notice being given to engineer to that effect, as follows: Ring 
one bell, hoist; and when bucket or cage up six feet, one bell, 
stop. Levels shall be designated and inserted in notice herein¬ 
after mentioned (see rule 1). 

§5153. Rules for Understanding and Enforcing Code of 
Signals. 

For the purpose of enforcing and properly understanding 
the above code of signals, the following rules are hereby estab- 

^^^Rule 1. In giving signals make strokes on bell at regular in¬ 
tervals. The bar (-) must take the same time as for one stroke 




















on the bell, and no more. If timber, tools, the foreman, bucket 
or cage are wanted to stop at any level in the mine, signal, by 
number of strokes on the bell, the number of the level first 
before giving the signal for timber, tools, etc. The time between 
the signals to be double bars (—). Examples: 6--5, would 
mean stop at the sixth level with tools; 2-3-1, would mean stop 
at the second level, man on bucket or cage, hoist; 4-3-1, would 
mean stop at the fourth level, man on bucket or cage, hoist;- 
2-3-2, would mean stop at the second kvel, man on bucket or 
cage, lower. 

Rule 2. No person must get on or off the bucket or cage 
while in motion. When men are to be hoisted or lowered, 
give the signal for men; men must then get on bucket or cage; 
then give the signal to hoist or lower. Bell cord must be at 
all times within reach of man on bucket or cage. 

Rule 3. After the signal, “ready to shoot in shaft,’' engineer 
must give his signal, when he is ready to hoist, i. e., raise the 
bucket or cage two feet, then lower it again. Miners must then 
give signal, “men to be hoisted,” then “spit fuse,” get on 
bucket or cage, and give the signal to hoist. 

Rule 4. All timbers, tools, etc., “longer than the depth of 
the bucket or cage” to be hoisted or lowered, must be securely 
lashed at the upper end of the cable. Miners must know that 
they will ride up or down the shaft without catching on rocks 
or timbers and be thrown out. 

Rule 5. The foreman will see that one printed sheet of these 
signals and rules for each level, one for the collar of the shaft, 
and one for the engine room, are attached to a board not less 
than twelve inches wide by thirty-six inches long, and securely 
fasten the board up where the signals can be easily read at 
the places above stated. 

§ 5154. Disobedience of Rules Precludes Recovery — Rules, Etc., 
to Be Signed. 

The above signals must be obeyed. Any violation of the 
same will be grounds for discharge of the party or parties so 
doing. No person, company, corporation, or individual operat¬ 
ing a mine within the State of Oregon, shall be responsible for 
accidents that may happen to men disobeying the above rules 
and signals. Said rules and signals, on notice as above set out, 
shall be signed by the superintendent or person having charge 
of the mine, who shall designate the corporation or owner of 
the said mine. 

§ 5155. Penalty Where Company Disobeys Act. 

Any person, company, corporation, or individuals operating 
any mine within the State of Oregon having in operation, a 


[17] 


steam, electrical, gasoline, or other hoisting plant as above 
described, who shall fail to comply with the terms of this act 
shall be deemed guilty of a misdemeanor, and upon conviction 
thereof shall be subject to a fine of not less than $25 nor more 
than $250. 

See Sections 5058 and 5059, ante, hours of labor in mines. 

§6216. Navigation and Vested Water Rights Not to Be 
Impaired. 

Navigation shall never in anywise be impaired by the opera¬ 
tion of this act, nor shall any vested interest in or to any 
mining water rights or ditches, or in or to any water or water 
rights, or reservoirs or dams, now used by the owners or 
possessors thereof in connection with any mining industry, or 
by persons purchasing or renting the use thereof, or in or to 
any other property now used, directly or indirectly, in carrying 
on or promoting the mining industry, ever be affected by or 
taken under its provisions, save and except that rights of way 
may be acquired over the same. 

§ 6551. Use of Water fqr Mining and Electrical Poiver a Pub¬ 
lic One. 

The use of the water of the lakes and running streams of 
the State of Oregon for the purpose of developing the mineral 
resources of the State and to furnish electrical power for all 
purposes, is declared to be a public and beneficial use and a 
public necessity, and the right to divert unappropriated waters • 
of any such lakes or streams for such public and beneficial 
use is hereby granted; provided, that the provisions of this act 
do not apply or extend to that certain stream situated in 
Multnomah County, Oregon, known as Multnomah Creek, and 
sometimes called Coon Creek, which stream forms Multnomah 
Falls, but said stream and the flow of water therein shall not 
be diverted or interrupted for any purposes whatsoever. 

This section and Section 6552, authorize corporations engaged in furnishing 
electrical power for all purposes to use the surplus water of the streams of the 
State for water power, and to condemn the right of riparian proprietors, and 
also rights of way for ditches. Section 6555 declares that when the point of 
diversion shall have been selected the appropriator shall post a certain notice 
thereat, and Section 6556 requires the filing for record within ten days there¬ 
after of a similar notice, and a map showing the general route of the ditch. 
Section 6557 provides that when such corporation shall have acquired the right 
to appropriate water in the manner provided, it may condemn lands necessary 
for the right of way for its ditch; and it w'as held that where a corporation 
organized for furnishing electrical pow'er for all purposes has selected a point 
for the diversion of the water of a stream, and has surveyed and located the 
line of its ditch, and has posted the required notice, and filed the notice and 
map, its right to appropriate the water is thereta.y acquired. Thereafter the 
corporation may maintain an action of condemnation without showing that it 
is the sole owner of the banks of the stream in question from the point of 
the proposed diversion to the mouth thereof, or that it has secured from the 
riparian proprietors below the proposed point of diversion the right to divert 
the surplus water in such stream: Grande Ronde Elec. Co. v. Drake, 46 Or. 
243 (78 Pac. 1031). 


[18] 


The provision in Section 18, Article I, Constitution Oregon, that private 
property shall not be taken for public use without just compensation first 
assessed and tendered, impliedly prohibits the taking of private property for 
private use, even though just compensation be made therefor: Grande Ronde 
Elec. Co. V. Drake, snpra. 

The necessity of exercising the right of eminent domain in general classes 
of cases is a legislative question, but whether the use in a particular instance 
is public or private, and the extent of the use necessary, are to be detex’mined 
by the courts as questions of fact; foi’ example, the legislature may determine 
that corporations furnishing electricity for sale shall be allowed to condemn 
private property for their use, yet as to the nature of the use to which a 
particular piece of property is to be put and the extent of the needs of the 
condemnor, there may be a question, which the courts must decide: Grande 
Ronde Elec. Co. v. Drake, supra. 

Sections 6551-6556 declare the use of water of the streams of the State for 
furnishing electric power for all purposes a public use, and authorize corpora¬ 
tions therefor, so that the use may not materially impair the rights of prior 
appropriators, on the corporation complying with certain prescribed conditions. 
Section 6557 declares that when such corporation shall have acquired the right 
to appropriate the water “in the manner hereinbefore provided it may proceed 
to condemn lands and premises necessary for right of way for its ditch” ; and 
Sections ’ 6558 and 6559 authorize such corporations, when authorized as so 
provided, to appropriate water and construct and maintain a ditch, to maintain 
an action to condemn a right of way for such ditch, and also for the condemna¬ 
tion and appropriation of the right to the flow of the water in any stream 
from which it is proposed to divert water below the point of diversion vested 
in riparian proprietors ; and it was held that a corporation, having so acquired 
the right to appropriate water, may maintain an action either to condemn land 
for a ditch, or to condemn the right to have the water flow in the channel of 
the stream through the premises of a riparian proprietor, or it may sue for 
both purposes in one action when both rights are vested in the same defendant: 
Grande Ronde Elec. Co. v. Drake, supra. 

Also bearing on this point as applies to cities or towns, see McMinnville v. 
Howensiine, -Or- (109 Pac. 81). 


§ 6552. Who May Use Water for Electric Poiver and Mining. 

All persons, companies, and corporations having title or 
possessory right to any'mineral or other land, shall be entitled 
to the use and enjoyment of the water of any lake or running 
stream within the State for mining and other purposes in the 
development of the mineral resources of the State, or to furnish 
electrical power for any purposes; and such waters may be 
made available to the full extent of the capacity thereof with¬ 
out regard to deterioration in quality or diminution in quantity, 
so that such use of the same does not materially affect or 
impair the rights of prior appropriations. 

§ 6553. Right of Way and Reservoir Sites May Be Condemned. 

All such persons, companies, and corporations may appropri¬ 
ate and divert such waters, and may condemn right of -way 
for ditches, canals, flumes, and pipe lines for the carrying of 
same, and may condemn the rights of riparian proprietors 
upon the lake or stream from which such appropriation is 
made, upon complying with the terms of this act. Such per¬ 
sons, companies, and corporations shall also have the right to 
condemn lands for the sites of reservoirs for storing water 
for future use, and for rights of way for feeders carrying 
water to such reservoirs, and for ditches, canals, flumes, or 
pipe lines carrying the same away, and shall have the right 
to take from any lake or running stream in this State and 




[19] 


store away any water not previously appropriated or not 
needed for immediate use by any person having a superior 
right thereto. 

§ 6554. Land May Be Entered Upon for Surveys and Location. 

Such person, companies, and corporations may enter upon 
any land for the purpose of locating a point of diversion of 
the water intended to be appropriated, and upon any land 
lying between such point and the lower terminus of its pro¬ 
posed ditch, canal, flume, or pipe line for the purpose of exam- 
ing the same and of locating and surveying the line of such 
ditch, canal, flume, or pipe line, together with the lines of 
necessary distributing ditches and feeders for reservoirs, and 
to locate and determine the site for reservoirs for storing 
water. 

§ 6555. Appropriator Must Post Notice. 

When a point of diversion shall have been selected, such 
appropriator shall post in a conspicuous place thereat a notice 
in writing containing a statement of the name of the ditch, 
canal, flume, or pipe line and of the owner thereof, the point 
at which its head gate is proposed to be constructed, a general 
description of the course of said ditch, canal, flume, or pipe 
line, the size or dimensions of the same in width and depth, 
the number of cubic inches of water (my miners’ measurement 
under a six-inch pressure) intended to be appropriated, and 
the number of reservoirs, if any. 

§ 6556. Maps of Description and Definite Location to he Filed. 

Within ten days from the date of posting such notice, such 
appropriator shall file for record in the office of the county 
clerk or recorder of conveyances, as the case may be, of the 
county in which said ditch or canal or flume or pipe line, 
distributing ditches, reservoirs, and feeders are situated, a 
similar notice, and at the same time shall file a map showing 
the general route of said ditch or canal or flume or pipe 
line; and in case said ditch or canal or flume or pipe line, 
distributing ditches, reservoirs, and feeders shall not lie 
wholly in one county, such notice and map shall be filed in the 
office of the county clerk or recorder of conveyances of each 
county in which any portion of said ditch or canal, flume, 
pine line, distributing ditches, reservoirs, and feeders may be 
situated. Within sixty days from the completion of such 
ditch or canal or flume or pine line, such appropriator shall 
in like manner file a map of definite location of said ditch 
or canal or flume or pipe line, by legal subdivisions of the land 
traversed thereby in case it is surveyed, with the points of 


[ 20 ] 

location of reservoirs, if any, designated thereon. It shall 
be the duty of every county clerk or recorder of conveyances, 
immediately upon the filing of such notice in his office, to 
record the same in a book kept for such purpose, and he shall 
file and preserve such maps among the records of his office. 

§ 6557. Appropriator May Proceed to Condemn Right of Way. 

When such persons, companies, and corporations shall have 
acquired the right to appropriate -water in the manner herein¬ 
before provided, it may proceed to condemn lands and premises 
necessary for right of way for its ditch or canal or flume or 
pipe line, and likewise for its distributing ditches and feeders 
and for sites for reservoirs; but right of way for the main 
line of said ditch or canal or flume or pipe line shall not 
exceed fifty feet in width, and for each distributing ditch or 
feeder thirty feet in width, and for a site for each reservoir 
twenty acres from one owner, or for every ten thousand 
inches of water (miners’ measurement, as aforesaid), or 
fraction thereof over half, of the capacity of the main ditch 
or canal or flume or pipe line for every twenty miles of its 
length. 

§ 6558. Mode of Procedure to Condemn. 

Whenever any persons, companies, and corporation author¬ 
ized as hereinbefore provided to appropriate water and to 
construct and maintain a ditch or canal or flume or pipe line 
for mining purposes, or to furnish electrical power for any 
purpose, and to condemn lands for right of way and sites for 
reservoirs, is unable to agree with the owner of such lands 
as to compensation to be paid therefor, or if such owner be 
absent from the state or incapable of acting, such persons, 
companies, and corporations, may maintain an action in the 
circuit court of the county in which the lands sought to be 
appropriated or some portion thereof are situated, for the 
purpose of having such lands appropriated to its use and 
for determining the compensation to be paid to such owner 
therefor. The proceedings in such action, to final determina¬ 
tion, shall be the same as those prescribed in Chapter 1 of 
Title XLV. 

§ 6559. Appropriation Below Contiguous Owners’ Point of 
Diversion. 

Such persons, companies, and corporations may also main¬ 
tain an action for the condemnation and appropriation of the 
right to the flow of water in any stream from which it or 
they propose to divert water below the point of diversion 
vested in the owners of lands lying contiguous to such stream 


[ 21 ] 


by virtue of their location. Such action shall be brought in 
the county where the lands to be affected, or some portion 
thereof, are situated, and the manner of procedure therein 
shall similar to that prescribed for the condemnation of 
lands in Chapter 1 of Title XLV; provided, that no person 
owning lands lying contiguous to any natural stream shall, 
without his consent, be deprived of water for household or 
domestic use, or for the purpose of watering his stock, or 
of water necessary to irrigate crops growing upon such lands, 
and actually used therefor, nor shall the rights of any prior 
appropriator, without his consent, be materially affected or 
impaired, regardless of whether such appropriation was made 
for use upon riparian or nonriparian land. 

§ 6560. Actual Construction, When to Be Begun. 

Within six months from the date of the posting of the 
notice above prescribed, the persons, companies, and corpora¬ 
tions proposing to appropriate the water therein mentioned 
shall commence the actual construction of their or its pro¬ 
posed ditch or canal or flume or pipe line, and shall prosecute 
the same without intermission (except as resulting from the 
act of God, the elements, or unavoidable casualty), until the 
same be completed; and the actual capacity of said ditch or 
canal or flume or pipe line when completed shall determine 
the extent of the appropriation, anything contained in the 
notice to the contrary notwithstanding. Upon a compliance 
with the provisions of this act, the right to the use of the water 
appropriated shall relate back to the date of posting said 
notice. 

§ 6561. Existing Appropriations U^^held. 

All existing appropriations of water made for beneficial 
purposes by any persons, corporations, or company, in accord¬ 
ance with the laws of the United States, or in accordance with 
the laws of the State of Oregon or the decisions of the Supreme 
Court, or the established customs and regulations of the dis¬ 
trict in which such appropriations have been made, shall be 
respected and upheld to the extent of the amount of water 
actually appropriated, nor shall any existing mill be deprived 
of its water power, however lawfully acquired, without the 
consent of its owner; and all controversies respecting rights 
to water under the provisions of this act shall be determined 
by the date of the appropriations as respectively made there¬ 
under by the parties. 

§ 6562. Extension of Ditch to Conform to Changes Requiring 

It. 

In case the channel of any natural stream shall become so 


[ 22 ] 

cut out, lowered, turned aside, or otherwise changed, from 
any cause, as to prevent any ditch or canal or flume or pipe 
line or feeder of any reservoir from receiving the proper 
inflow of water to which it may be entitled from such natural 
stream, the persons, companies, or corporations owning such 
ditch or canal or pipe line, flume, or feeder shall have the 
right to extend the head of such ditch, or canal or pipe line 
flume or feeder to such distance upon the streams which sup¬ 
plies the same as may be necessary for securing a sufficient 
flow of water into the same; and for such purpose such per¬ 
sons, companies, or corporations shall have the same right to 
maintain proceedings for condemnation of right of way for 
such extension as in case of constructing a new ditch, and the 
priority of right to take the water from such stream through 
any ditch or canal or pipe line, flume, or feeder shall be un¬ 
affected in any respect by reason of a change in the place 
of diversion; provided, no such change shall interfere with 
the complete use or enjoyment of any other ditch or canal, 
pipe line, flume, or feeder lawfully constructed; and when 
from any cause the line of any ditch or canal, pipe line, flume, 
or feeder along the line of common user, by reason of the 
faulty construction of such portion of such ditch, canal, flume, 
or pipe line, and the persons, companies, or corporations secur¬ 
ing the use of the same shall be liable to the owner, persons, 
companies, or corporations for all damages by it sustained 
growing out of the enlargement of said ditch, canal, flume, 
or pipe line, or the increased volume of water turned therein. 

§ 6563. Bond for Payment of Costs of Change. 

Before proceeding to secure the right to make use of any 
portion of the ditch, canal, flume, or pipe line, the persons, 
companies, or corporations seeking to secure the same shall 
execute and deliver to the owner, persons, companies, or cor¬ 
porations a bond with sufficient sureties in an amount equal 
to the original cost of construction and the estimated cost of 
enlargement of the portion of said ditch, canal, flume, or pipe 
line sought to be subjected to a double use, conditional for 
the payment on demand to the owner persons, companies, or 
corporations of a reasonable proportion of the original cost 
of construction of such portion of said ditch, canal, flume, or 
pipe line and of the cost of enlargement thereof, together with 
a reasonable proportion of the cost of its maintenance as 
enlarged, and of all damages that may at any time accrue to 
the owner persons, or companies, or corporations, and for 
which it shall have a right of recovery against said other per¬ 
sons, companies, or corporations by reason of the provisions 
of this section; provided, that in case the persons, companies. 


[23] 


or corporations owning said ditch, canal, flume, or pipe line 
shall object to the amount or sufficiency of the sureties on 
such bond, it shall serve upon the corporations, companies, or 
persons desiring to use such ditch, canal, flume, or pipe line 
within ten days after receiving said bond a notice specifying 
particularly the objections thereto, and the sufficiency of the 
sureties, or the amount of the bond shall be determined by 
the judge of the circuit court of the county where said ditch, 
canal, flume, or pipe line is situated, and said judge may 
hear evidence at chambers in relation ( ^' * * ) as originally 
constructed can no longer be maintained, the persons, com¬ 
panies, or corporations owning the same may alter the course 
thereof and for such purnose may condemn lands for right of 
way as in case of original construction. 

This and the preceding section are printed as in the enrolled bill. They 
have evidently been made up from Sections 6535, 6537, and confused in the 
transcribing. 

§ 6564. Shortest Practicable Route Must Be Selected. 

Whenever it becomes necessary to construct any ditch, canal, 
flume, pipe line, distributing ditches, or feeders across the 
improved or occupied lands of another, under the provisions 
of this act, such persons, companies, or corporations shall 
select the shortest and most direct route practicable, having 
reference to cost of construction, upon which said ditch, canal, 
flume, pipe line, distributing ditches, or feeders can be con¬ 
structed with uniform or nearly uniform grade. 

§ 6565. La7id Not to he Burdened With More Than One Ditch.' 

No tract or parcel of improved or occupied land in this 
State shall, without the written consent of the owner thereof, 
be subjected to the burden of two or more ditches or canals, 
flumes, or pipe lines, constructed under this act for the pur¬ 
pose of conveying water through said property when the same 
object can be feasibly and practically attained, uniting and 
conveying all the water necessary to be conveyed through 
such property in one ditch, canal, flume, or pipe line, and any 
persons, companies, or corporations having constructed a 
ditch, canal, flume, or pipe line for the purpose hereinbefore 
provided shall allow any other persons, companies, or corpora¬ 
tions to enlarge such ditch, canal, flume, or pipe line, so as 
not to interfere with the operations of the persons, companies, 
or corporations owning the same, and use such ditch, canal, 
flume, or pipe line in common with the persons, companies, or 
corporations owning the same, upon payment to such persons, 
companies or corporations of a reasonable proportion of the 
cost of construction and maintaining such ditch, canal, flume, 
or pipe line. Such persons, companies, or corporations shall be 
jointly liable to any person damaged. 

See note to Section 6563, ante. 


[24] 


§ 6566. Natural Depressions in Earth May he Utilized. 

In constructing a ditch, canal, flume, or pipe line, dis¬ 
tributing ditches or feeders, under the provisions of this act, 
the owner or owners thereof may make use of natural depres¬ 
sions in the earth along the line thereof to all intents and pur¬ 
poses as parts of said ditch, canal, flume, or pipe line, dis¬ 
tributing ditches or feeders; and it may conduct the water 
appropriated by it along the channel of any natural stream, 
but not so as to raise the water thereof above ordinary high- 
water mark, and may take the same out again at any point 
desired without regard to the prior rights of others to water 
from said stream, but due allowance shall be made for evapora¬ 
tion and seepage. 

§ 6567. Head Gates Must Be Maintained. 

The owner or owners of every ditch, canal, flume, or pipe 
line constructed under the provisions of this act shall be 
required to erect and keep in good repair a head gate at the 
head of its ditch, canal, flume, or pipe line, which, together 
with the necessary embankments, shall be of sufficient height 
and strength to control the water at all ordinary stages. The 
framework of such head gate shall be of timber not less than 
four inches square, and the bottom sides and gate or gates 
shall be of plank not less than two inches in thickness. 

§ 6568. Liability For Damages From Leakage or Overflow. 

• The owner or owners of every ditch, canal, flume, or pipe 
line constructed under the provisions of this act shall be liable 
for all damages done to the persons or property of others, 
arising from leakage or overflow of water therefrom growing 
out of want of strength in the banks or walls, or negligence 
or want of care in the management of said ditch, canal, flume, 
or pipe line, or reservoir; provided, that damage from extra¬ 
ordinary and unforseen action of the elements, or attributed 
in whole or in part to the wrongful interference of another 
with said ditch, canal, flume, pipe line, or reservoir, which 
may not be known to said corporation for such length of 
time as would enable it by the exercise of reasonable efforts 
to remedy the same, shall not be recovered against said cor¬ 
porations, companies, or persons. 

§ 6569. Bridges at Road Crossing, Liability for Neglect to 
Build. 

The owner or owners of every ditch, canal, flume, or pipe 
line constructed under the provisions of this act across any 
public highways or public traveled road shall put a good 


[25] 


substantial bridge, not less than fourteen feet in breadth, 
over such ditch, canal, or flume, \vhere it crosses said high¬ 
way or road. Travel shall not be suspended by the construc¬ 
tion of said ditch, canal, flume, or pipe line, and such bridge 
shall be completed within three days from the time said high¬ 
way or road is intersected. In case such bridge is not so 
constructed and completed, it shall be the duty of the road 
supervisor of the road district in which the point of intersec¬ 
tion is situated to construct said bridge, and he shall bring 
an action in his own name, as supervisor, for the use and 
benefit of his road district, in any court of competent juris¬ 
diction, to recover the expense of constructing said bridge; 
and in such action, in addition to the costs and disbursements 
provided by statute, he shall recover such sum as the court 
or justice, if the action be brought in a justice’s court, may 
adjudge to be reasonable as attorney fees in said action. 
Appeals may be taken in such cases as in other actions. 

§ 6570. Embankments and Reservoirs Must he Built and Kept 
so as to Prevent Damage. 

The owner or owners of every ditch, canal, flume, or pipe 
line constructed under the provisions of this act shall care¬ 
fully keep and maintain the embankments and walls thereof, 
and of any reservoir constructed to be used in conjunction 
therewith, so as to prevent the water from wasting and from 
flooding or damaging the premises of others; and it shall not 
divert at any time any water for which it has not actual use 
or demand. 

§ 6571. Right to Appropriate Lost by Abandonment. 

The right to appropriate water hereby granted may be 
lost by abandonment; and if any persons, companies, or cor¬ 
porations constructing a ditch, canal, flume, or pipe line under 
the provisions of this act shall fail or neglect to use the same 
for a period of two years at any time, it shall be taken and 
deemed to have abandoned its appropriation, and the water 
appropriated shall revert to the public and be subject to other 
. appropriations in order of priority; but the question of aban¬ 
donment shall be one of fact, to be tried and determined as 
other questions of fact. 

§ 6572. Wilful Injury to Ditch, Etc., Peiialty For. 

Any person who shall knowingly and willfully cut, dig, 
break down, or open any gate, bank, embankment, or side 
of any ditch, canal, flume, or pipe line, feeder, or reservoir, 
constructed under the provisions of this act, the property of 
another, with intent maliciously to injure the owner or owners 


[26] 


of such property or any other person, or for his or her own 
gain, by unlawfully causing the water contained in said ditch, 
canal, flume, pipe line, feeder, or reservoir to run or pour 
thereout with intent of stealing the same or appropriating 
it for his or her own gain, profit, benefit, or advantage, with¬ 
out the consent of the owner or owners thereof, shall be deemed 
guilty of a misdemeanor, and upon conviction thereof, shall 
be punished by a fine of not less than $10 nor more than $300, 
or by imprisonment in the county jail, not less than one month 
nor more than one year. Justices’ courts shall have juris¬ 
diction of all prosecutions arising under this section. The 
person so trespassing shall also be liable for all damage caused 
by his or her act to the owner or owners of said property, or 
any person or persons injured by his or her wrongful act. 

§ 6573. Parties in Suits for Protection of Water Rights. 

In any suit which may hereafter be commenced for the pro¬ 
tection of rights to water acquired under the provisions of this 
act, the plaintiff may make any and all persons who have 
diverted water from the same stream or source parties to such 
suit, and the court may in one decree determine the relative 
priorities and rights of all parties to such suit. Any person 
claiming a right on said stream or source, not made a part 
to such suit, ■ may become such on application to the court, 
when it is made to appear that he is interested in the result 
of the suit, and may have his right determined; and the court 
may, at any stage, on its own motion, require any or all per¬ 
sons having or claiming rights to water on said stream or 
source to be brought in and made parties to said suit, when 
it appears that a complete determination of the issue involved 
cannot be made without the presence of such person or per¬ 
sons. 

§ 6574. Rights of Way Over State Lands. 

The right of way to the extent hereinbefore specified, for the 
ditches or canals, flumes, pipe lines, distributing ditches, and 
feeders of any persons, companies, or corporations appro¬ 
priating water under the provisions of this act, across any and * 
all lands belonging to the State of Oregon, and not under con¬ 
tract of sale, is hereby granted. 

§ 6707. Annual Statement of Corporation—License Fee — Lia¬ 
bility for Failure to Pay. 

Every corporation organized or formed under, by, or pur¬ 
suant to the laws of this State, whether now existing or here¬ 
after created, and every foreign corporation, joint stock com¬ 
pany, or association, now doing business in this State, or 


[27] 


that may hereafter do business in this State, except fire, 
marine, fire and marine, life, accident, life and accident, plate 
glass and steam-boiler insurance companies, and surety com¬ 
panies, shall, during the month of June of each year, and on 
or before the first day of July of each year, furnish to the 
Secretary of State, upon blanks to be supplied by him, a cor¬ 
rect statement, sworn to by one of the officers of such cor¬ 
poration, or the managing agent or authorized attorney in 
fact in this State of any foreign corporation, joint stock 
company, or association, before an officer duly authorized to 
administer oaths, setting forth the name of the corporation, 
joint stock company, or association, the location of its prin¬ 
cipal office, the names of the president, secretary and treasurer, 
with the postoffice address of each, date of the annual election 
of directors and officers of such corporation, joint stock com¬ 
pany, or association, the amount of the authorized capital 
stock, the number of shares and par value of each share, the 
amount of capital stock subscribed, the amount of capital 
stock issued, and the amount of capital stock paid up. Every 
foreign corporation, joint stock company or association shall 
include in such statement the names and postoffice addresses 
of its managing agent and attorneys in fact in this State. 
Every such corporation, joint stock company, or association, 
foreign as well as domestic, shall pay an annual license fee 
in proportion to the amount of its authorized capital stock as 
follows, to wit: If such capital stock shall not exceed $5,000, 
an annual license fee of $10; if such capital stock shall exceed 
$5,000, and shall not exceed $10,000, an annual license fee 
of $15; if such capital stock shall exceed $10,000 and shall 
not exceed $25,000, an annual license fee of $20; if such 
capital stock shall exceed $25,000 and shall not exceed $50,000, 
an annual license fee of $30; if such capital stock shall exceed 
$50,000 and shall not exceed $100,000, an annual (license) 
fee of $50; if such capital stock shall exceed $100,000 and 
shall not exceed $250,000, an annual (license) fee of $70; 
if such capital stock shall exceed $250,000 and shall not exceed 
$500,000, an annual license fee of $100; if such capital stock 
shall exceed $500,000 and shall not exceed $1,000,000, an 
annual license fee of $125; if such capital stock shall exceed 
$1,000,000 and shall not exceed $2,000,000, an annual license 
fee of $175; if such capital stock shall exceed $2,000,000, an 
annual license fee of $200. The amount of the authorized 
capital stock of every corporation, joint stock company, or 
association shall be determined by its articles of incorporation, 
or amendments or supplementary articles of incorporation, 
charter, declaration, report, or statement filed with the Secre¬ 
tary of State, as in this act provided. This section shall not 


[28] 


apply to any corporation formed or organized for any educa¬ 
tional, literary, scientific, religious, or charitable purpose. 
On or before the fifteenth day of July of each year the Secre¬ 
tary of State shall file with the State Treasurer a statement, 
showing the amount of license fee due, as ascertained in the 
foregoing manner, from the different corporations hereinbefore 
referred to. Within thirty days thereafter every such corpora¬ 
tion shall pay, or cause to be paid, to the State Treasurer the 
license fee hereinbefore mentioned. Any such corporation 
failing or refusing to render such statement, or to amend the 
same when required to do so by the Secretary of State, in 
case the same shall be incomplete, irregular, or unsatisfactory, 
or to pay such license fee, for more than twenty days after the 
times above specified, or any corporation, joint stock company, 
or association doing business in this State contrary to this act, 
shall be liable to a fine of $100, to be recovered, together with 
any license fee due, by an action at law in the name of the 
State, to be instituted by any district attorney of the State 
at request of the Secretary of State. The annual license fee 
required by this section shall be paid in advance for the fiscal 
year beginning July first of each year, and in case of new 
corporations formed or entering the State during the fiscal 
year, the first year’s fee shall be proportionate to such fraction 
of a year. 

The payment by a corporation of the fee provided by this section, which 
imposed an annual license fee on corporations according to their capital stock, 
does not exempt the corporation from paying a two per cent tax on its gross 
receipts, imposed by the initiative measure of 1 906, since the annual fee is 
a business or excise tax, and the other tax is one on the franchise, and hence 
the taxes do not amount to double taxation, prohibited by Section 32, Article I, 
Const. Or.: Oregon v. Pacific St. Tel. d- Tel. Co. 53 Or. 16.5, 99 Pac. 427. 

The fact that a corporation has paid all taxes assessed and levied on its 
property, “including the value of its franchise,” does not render invalid the 
initiative measure of 1906, imposing a ta.x of two per cent on its gross receipts, 
where at the time the assessment and levy were made there was no law 
requiring a corporate franchise to be assessed nor providing the manner of 
estimating the value thereof: Oregon v. Pacific Tel. d Tcl. Co., supra. 

§ 6708. Corporations Failing to Pay License Fee Not to Main¬ 
tain Suit—Other Disabilities—List of Delinquents — 
Certificate and Effect. 

No domestic corporation, and ^no foreign corporation, joint 
stock company, or association, which shall have failed to pay 
the last annual license fee, or any other tax or fee which shall 
have become due and payable against it, as provided in this 
act or any law of this State, shall be permitted to maintain 
any suit, action, or proceeding in any court of justice within 
this State while such delinquency shall continue; and it shall 
be the duty of the State Treasurer to furnish the Secretary 
of State, at the time that any such annual license fee or other 
tax of a corporation or joint stock company or association 
shall become delinquent, a list of such delinquencies, contain- 


[29] 


ing the name of the corporation, joint stock company, or 
association, the amount of the tax or license fee delinquent, 
and such list shall be filed in the office of the Secretary of 
State as a public record, and the name of any corporation or 
joint stock company or association may be stricken therefrom 
upon payment by such corporation or company or association 
of the amount of such delinquency, and any annual tax or 
taxes, or license fee or fees, with interest thereon at the 
rate of six per cent per annum, which shall have become due 
therefrom after the preparation of such list. While such 
delinquency shall continue, the right of such delinquent cor¬ 
poration, company, or association to transact business and 
be deemed to be in abeyance, and such corporation, joint stock 
company, or association shall not be permitted to maintain 
any suit, action, or proceeding in any court of justice in this 
State; but the said delinquency of such corporation or joint 
stock company or association shall not operate to impair or 
delay the right of any other person, firm, or corporation. 
The certificate of the Secretary of State, under the seal of the 
State, that any corporation, joint stock company, or associa¬ 
tion is in default in the payment of any tax or license fee, 
shall be conclusive evidence of such delinquency in any court 
of justice, or before any board, commission, magistrate, officer, 
or inferior tribunal, subject to be overcome, however, by like 
certificate that such delinquent tax or license fee, with interest 
and penalty has been paid since the issuing of the certificate 
of delinquency. 

§ 6709. Default in License Fee, When Pleaded. 

A plea that any domestic corporation or foreign corporation, 
joint stock company, or association has not paid any tax or 
fee required by any law of this State, and which is then 
due and payable, may be interposed at any time before trial 
upon the merits in any action, suit, or proceeding, and if 
issue be joined upon such plea, the same shall be first tried. 
Such plea cannot be made at any time by the delinquent cor¬ 
poration, joint stock company, or association. 

See note to Section 6727, post. 


§ 6710. When Secretary to Pay Over Fees to Treasurer. 

All fees and payments of every description, required by this 
act to be made to the Secretary of State, shall be paid by 
him to the State Treasurer on the first day of the calendar 
month following their receipt by the Secretary of State, and 
all fees, taxes, and payments required by this act shall become 
a part of the general fund of the State. 


[30] 


§ 6711. Secretary to Keep Statements as Public Records. 

All statements, reports, and data of every description, 
required by this act to be furnished to the Secretary of State, 
shall be suitably filed and indexed in his office, and shall be 
deemed public records. 

§ 6712. Affirmation in Lieu of Oath, Likeivise Perjury. 

Wherever a document is required by this act to be sworn 
to or verified by an oath, an affirmation shall be deemed 
equivalent thereto, and a false affirmation is to be deemed 
perjury equally with a false oath. 

§ 6713. License Fee for Corporations Mining for Precious 
Metals. 

Every corporation formed or organized under and pursuant 
to the laws of the State of Oregon, whether now existing or 
hereafter created, for the purpose of engaging in the business 
of mining for any of the precious metals, and whose business 
it shall be to engage in said business only, shall, during the 
month of June of each year, and on or before the first day 
of July of each year, furnish to the Secretary of State, upon 
blanks to be supplied by him for that purpose, a correct state¬ 
ment sworn to by one of its officers before some officer author¬ 
ized to administer oaths, setting forth in detail the name of 
the corporation, the location of its principal office, the names 
of the president, secretary, and treasurer thereof, with the 
postoffice address of each, the date of the annual election of 
officers and directors of such corporation, the amount of the 
authorized capital stock, the number of shares and par value 
of each share, the amount of the capital stock subscribed, the 
amount of capital stock issued, and the amount of the capital 
stock paid up, the amount of its properties in this State and 
where the same are located; also stating in general terms 
the amount of work done thereon, and improvements made 
thereon since the time of filing the last annual report, together 
with a statement of the amount and value of the annual output 
or products of the mines of such corporation, between the first 
day of January and the thirty-first day of December of the 
year preceding, and that said corporation is not engaged 
in or transacting any other business except that of locating, 
prospecting, developing or operating mines for precious 
metals, and any such mining corporation whose annual output 
or products shall not exceed in value the sum of one thousand 
dollars, shall, if such above provided statement is filed in the 
office of the Secretary of State during the month of June and 
on or before the first day of July of each year, thereupon be 
exempt from the payment of the annual license fee as now 


[31] 


provided by law, but in lieu thereof shall pay an annual 
license fee of ten dollars; provided, that no such corporation 
shall be required to make such statement if it shall file the 
statement and pay the annual license fee required by “An Act 
to provide for the licensing of domestic corporations and 
foreign corporations, joint stock companies, and associations,’’ 
etc., approved February 16, 1903, or hereafter required by 
law. 

The act referred to embraces Section 6708. 


§ 6714. Statement of License Fees—Failure to Pay — Liabil¬ 
ities. 

On or before the fifteenth day of July of each year, the 
Secretary of State shall file with the State Treasurer a state¬ 
ment showing the amount of license fee due, as ascertained 
in the foregoing manner, from the different corporations here¬ 
inbefore referred to. Within thirty days thereafter, every 
such corporation shall pay or cause to be paid to the State 
Treasurer, the license fee hereinbefore mentioned. Any such 
corporation failing or refusing to render such statement, or 
to amend the same when required to do so by the Secretary of 
State, in case the same shall be incomolete, irregular, or 
unsatisfactory, or to pay such license fee, for more than 
twenty days after the time above specified, or any corporation, 
joint stock company, or association doing business in this 
State contrary to this act, shall be liable to a fine of $100, 
to be recovered, together with any license fee due, by an action 
at law in the name of the State, to be instituted by any dis¬ 
trict attorney of the State at the request of the Secretary of 
State. The annual license fee required by this act shall be paid 
in advance for the fiscal year beginning July first of each 
year, and in case of new corporations formed during the fiscal 
year, the first year’s fee shall be proportioned to such frac¬ 
tion of a year. 

§ 6715. Sections Applicable. 

Sections 6708, 6709, 6710, 6711, and 6712, to provide for the 
licensing of domestic corporations and foreign corporations, 
joint stock companies, and associations, etc., shall apply to 
this act, except as to the amount of the annual license fee, 
which shall refer to the annual license fee provided for by 
this act. 

§ 6857. Mining and Other Private Corporations May Condemn 
Land. _ 

Any corporation organized for the purpose of opening or 
operating any gold, silver, or copper vein or lode, or any 


[32] 


coal or other mines, or any marble, stone, or other quarry; 
or for cutting or transporting timber, lumber, or cord-wood, 
or for the manufacture of lumber, shall have the right to 
construct and operate railroads, skid roads, tramways, chutes, 
and flumes between such points as may be indicated in their 
articles of incorporation, and shall have a right to enter upon 
any land between such points for the purpose of examining, 
locating, and surveying the line of such railroads, skid roads, 
tramways, chutes, and flumes, doing no unnecessary damage 
thereby, and such corporations shall have power to appro¬ 
priate so much of said land as may be necessary for the same, 
not exceeding sixty feet in width, and may maintain an action 
for the appropriation thereof in the manner and form as by 
law provided by any railway, macadamized road, plank road, 
clay road, canal, or bridge, and with like effect. 

A skid road built solely to facilitate the logging business of a private com¬ 
pany, mainly passing through and terminating at each end in the land of the 
company, inaccessible to the public, and not connecting at any point with 
the public highway, is not a road for public use and the right of condemnation 
cannot be exercised to secure it: Apex Transp. Co. v. Garbade, 32 Or. 585, 52 
Pac. 573. 

Although the legislature must determine the necessity and expediency of 
exercising the right of eminent domain, the question whether a proposed use 
is in fact public is to be determined by the courts, independent of the ob.iect 
expressed in a charter or statute conferring the right to condemn: Apex Transp. 
Co. V. Garbade, 32 Or. 582, 52 Pac. 573. 

§ 6858. Private Corporations Deemed For Public Benefit. 

Any such railroads, skid road, tramways, chutes, flumes, 
shall be.deemed to be for public benefit, and any such rail¬ 
road so constructed and operated shall afford to all persons 
equal facilities for the transportation of freight upon pay¬ 
ment or tender of reasonable compensation therefor, but 
said railway shall not be required to carry passengers; and 
any such skidway, tramway, chute or flume shall afford to all 
persons equal facilities in the use thereof for the purpose to 
which they are adapted, upon tender or nayment of the reason¬ 
able compensation for such use. 

§ 7444. Liens Authorized on Mines in Favor of Laborer, 
Materialman, Etc. 

Every person who shall perform labor upon, or furnish 
material for the working or development of any mine, lode, 
mining claim, or deposit yielding or containing coal, metal or 
mineral of any kind, or for the working or development of 
any such mine, lode, mining claim, or deposit in search of any 
such coal, metal or mineral; and any person who shall do 
work upon or furnish materials for any shaft, tunnel, incline, 
adit, drift or other excavation designed for the use, or work¬ 
ing, or draining of any such mine, lode, mining claim, or 
deposit; and any person who shall do work or furnish material 


[33] 


for any road, tramway, train (trail), flume, ditch or pipe line, 
building, structure or super-structure used for, or in connec¬ 
tion with the working or development of any such mine, lode, 
mining claim, or deposit; and any person who shall perform 
labor or service in freighting or packing any material or 
supplies for the use, working or development of any such 
mine, lode, mining claim, or deposit, or for labor performed 
in transporting material or the product from such mine, lode, 
mining claim, or deposit, road, tramway, trail, flume, ditch 
or pipe line, building, structure or super-structure; and any 
person who shall furnish any provisions, materials or supplies 
for the working or development of any such mine, lode, mining 
claim, or deposit, or the working or operation of any road, 
tramway, trail, flume, ditch or pipe line, building, structure or 
superstructure, used or operated in connection therewith, shall 
have a lien upon such mine, lode, deposit, mining claim, (de¬ 
posit) , road, tramway, trail, flume, ditch or pipe line, building, 
structure or superstructure to secure to him the payment for 
the work or labor done, or material furnished, which lien shall 
attach in every case to such mine, lode, mining claim, deposit, 
road, tramway, trail, flume, ditch or pipe line, building, struc¬ 
ture or superstructure owned or used in connection with the 
operation and development of the same; provided, that when 
two or more mines, lodes, mining claims or deposits are owned 
or claimed by the same person or persons, and worked through 
a common shaft, or tunnel, incline, adit, drift or other excava¬ 
tion, or over one tram, or at one mill or other reduction works, 
then all the mines, lodes, mining claims or deposits so worked, 
and all roads, tramways, trails, flumes, ditches or pipe lines, 
buildings, structures or superstructures, used or owned in 
connection therewith, shall, for the purpose of this act, be 
deemed one mine; and provided further, that this section 
shall not be deemed to apply to the owner or owners of any 
mine, lode, mining claim, deposit, shaft, tunnel, incline, adit, 
drift or other excavation, road, tramway, trail, flume, ditch 
or pipe line, building, structure or superstructure, when the 
same shall be worked by a lessee or lessees, or by any person or 
persons other than the owner; provided, the lessor or lessors, 
or other person or persons other than the owner of any such 
mine, lode, deposit, shaft, tunnel, incline, adit, drift or other 
excavation, millsite or mill, shall have recorded in the mining 
records of the county wherein any such mining property is 
located, a copy of such lease, or any other instrument, before 
the work shall have begun on such property, except as here¬ 
inafter stated; provided further, that the owner or owners of 
any such mine or mines, lodes, deposits, shaft, tunnel, incline, 
adit, drift or other excavation, mill or millsite, shall, in the 

Sife- 3 


[ 34 ] 


manner hereinafter prescribed, post, or cause to be posted, at 
not less than three conspicuous places upon such mine, at or 
near the place thereon where the same is being worked or 
develooed, a notice in writing, signed by the owner or owners 
of such property, stating the name or names of the lessees, or 
other person or persons other than the owner operating said 
property, and that the owner or owners thereof will not be 
responsible for any debt or debts contracted by the lessee or 
lessees, or other person or persons other than the owner, in 
connection with the working, operation or development of such 
property, or for any work, improvement or development there¬ 
on under such lease or other instrument. The failure of any 
owner or owners of such property to post the notices above 
provided for, and secure the proper recording thereof, shall be 
deemed conclusive proof of the consent of such owner or 
owners that his or their interest in such mine shall be subject 
to any lien filed under the provisions of this act. 

The form of coal obtained from the strata of the earth is a carbonaceous min¬ 
eral substance, commonly known as mineral coal, and the procurement thereof by 
digging in the earth is termed “mining” ; Escott v. Crescent Coal <f- Nav. Co. 
.... Or. (106 Pac. 452.) 

The term “mine” or “deposit yielding metals or minerals of any kind,” as used 
in this section, giving laborers and materialmen a lien for the working or devel¬ 
opment of any mine, lode, mining claim, or deposit yielding metals or minerals of 
any kind, include a coal mine, although the term “mining claim” as used therein 
may not do so : Escott v. Crescent Coal d Nav. Co., supra. 

In construing a statute the court must look to the purpose for which it was 
enacted, and statutes providing for liens are to be construed in favor of the pur¬ 
pose of the law. Hence, where the purpose of a statute was to protect laborers 
and materialmen of a particular class and the legislature used the words “mining 
claim” in the title, the words are not to be strictly construed to determine the 
right to a lien, but they are to control in measuring the extent of the lien: 
Escott V. Crescent Coal d- Nav. Co., sup'^ra. 

Where the legislature so amended an act providing for labor and material- 
men’s liens upon mines so as to specifically provide for such a lien upon mines 
containing coal, by so doing it did not conclusively declare that prior thereto no 
such lien had been provided for, for persons working in or furnishing materials 
for a coal mine ; and, where prior to the amendment a person sought to establish 
a laborer’s lien for work done upon a road leading to a coal mine, and the court 
held that no such lien was provided for, and the amendment provided for such a 
lien, it must be supposed that the amendment was to meet only the deficiency 
pointed out in that case. Hence, the legislature must have assumed that the 
original statute included work done upon coal mines: Escott v. Crescent Coal d 
Nav. Co., s^ipra. 

As amended, this section provides that “every person who shall perform la¬ 
bor” about a mine shall have a lien, etc. Section 74 45 provides that “every la¬ 
borer or materialman,” claiming under the act shall take certain steps to perfect 
his lien ; and it was held that the phrase “every person who shall perform labor 
on any mine,” etc., applies to ordinary laborers who perform actual, visible toil 
with their hands or muscles, other kinds of service not being expressly mentioned, 
and does not embrace superintendents or managers: Durkheimer v. Copperopolis 
Copper Co.. 55 Or. 37 ( 104 Pac. 895.) 

The section containing a provision granting a lien to a person working in a 
boarding house in connection with a mine, was amended by T. 1907, p. 294, which 
omitted that provision and I’epealed all acts and parts of acts in conflict with the 
provisions thereof, and the lien as to such laboi’er was destroyed : Durkheimer v. 
Copperopolis Copper Co., supra. 

Any book kept by the proper officer as part of the records of his office, in 
which are recorded instruments affecting mines, is a book of “mining records” 
under this section: Slover v. Bailep, 49 Or. 426 ( 90 Pac. 665.) 

The provision in this section, making lessors of mining property, though 
worked by lessees, liable for the claims of miners, unless a copy of the lease is 
recorded in the mine records in the proper county. Section 744 8, requiring persons 
personally liable for the payment of the claims of miners to be made parties to a 
suit to foi eclose a lien on the mine, the lessees are proper though not necessary 
parties. The statute is for the benefit of the owner, and he may expressly or im- 



[35] 


file p?'opT?'Hmef “ Oemandlng at 

in aie notice of Hen nor property given by defendants and 

rcintincr lien, not certified copies of the mining journals of the countv 

sufficiently certain decree can be rendered by refer^ 

anif notice nf°i,^n^^ records in question, as specified in the lease 

and notice of lien : Lewis v. Beeman, supra. 

onf^IV^ subject leased property to the satisfaction of miners’ liens arising- 

out of debts contracted by the lessee, the burden is on the lien claimants to sh^ 

owners, that no payments have been made on account of the^r hens 
since they were filed: Lewis v. Beeman, supra. ^ 'juiu uieir iiens 

Under the express provision of this section, no lien can be enforced against 
mining property for labor performed for the lessee where the lease was recorded 
before the work -was begun : Lexois v. Beeman, sujira. 

The perfecting and enforcing of a lien is a privilege granted by the statute 
that may be waived or claimed by the lienor at his pleasure, but if he elects to 
claim It, he must comply with the conditions attached to the grant: Horn v 
Lnited States Mining Co., 47 Or. 124 (81 Pac. 1009.) 

"This statute requiring ev^ery laborer entitled to a claim of lien upon a mine to 
file his claim with the county clerk within a stated time prescribed by the statute 
is a condition precedent to the preservation by the laborer of the inchoate right of 
hen arising from the performance of the work, and if it is not observ^ed the lien 
is lost: Horn y. United States Mining Co., supra. 

The time within which to file a lien, is reckoned by excluding the first (the 
last day of service in the mine) and including the last day of the period pre¬ 
scribed: Horn V. United States Mining Co., supra. 

The lien given on mining claims by this section, applies to claims on which 
minerals have not, as well as to those on which minerals have been found: Wil¬ 
liams V. Toledo Coal Co., 25 Or. 426 (36 Pac. 159: 42 Am. St. Rep. 799.) 

Prior to the amendment the lien did not include labor performed in building a 
wagon road, not constituting an incline or an excavation, since when liens are 
given for specified classes of work, all other classes are impliedly excluded : Wil¬ 
liams V. Toledo Coal Co., supra. 

The words “roads, tramw'ays, trails, flumes, ditches or pipe lines,’’ include such 
appurtenances when not situated upon the mine, and that the term “upon any 
millsite or mill used, owned, or operated in connection with such mine,’’ in such 
section, prior to its amendment, had reference to the millsite or mill not situated 
on the mine ; the section as amended necessarily including the millsite or mills 
connected wdth the mine, without being specifically mentioned, so that a miner’s 
lien notice need not state nor the proofs show that the labor for which the lien is 
claimed has been done on the mill or building on the mine to subject them to the 
lien: Washburn v. Inter-Mountain Mining Co . Or. (109 Pac. 382.) 

A foreman at a mine whose business it was to see that the work of mining was 
done in different places, and who framed timbers and helped the men, took part 
in the erection of the mill, and did other things generally to assist in the further¬ 
ance of the w'ork, was not such an executive repi’esentative of the mining corpor¬ 
ation as to preclude him from obtaining a miner’s lien for services performed: 
Washburn v. Inter-Mountain Mining Co., supra. 

Where, as to claimants of miners’ liens, the mines and stamp mill constituted 
real property and could not be sold separately without depreciation of either or 
both, the owner of the mill under a conditional sale which was not good as 
against the claimants, was not entitled to compel a sale of the mines in satisfac¬ 
tion of the claims before a sale of the mill should be ordered : Washburn v. Inter- 
Mountain Mining Co., supra. 

An account containing a lump charge, in which are mingled lienable and non- 
lienable items unsegregated, will not support a lien ; nor in such cases can the 
defect be cured by oral evidence, separating the two classes of items: Williams 
V. Toledo Coal Co.. 25 Or. 426 (36 Pac. 159: 42 Am. St. Rep. 799.) 

The holder of an irrevocable exclusive license to work a mine, who by his 
expenditures has acquired an interest entitling him to possession against all per¬ 
sons, is a lessee within the spirit and meaning of this act: Stinson v. Hardu 27 
Or. 584 ( 41 Pac. 116.) 


§ 7445. Lien Claimant to File Claim, Within What Time. 

It shall be the duty of every laborer or materialman claiming 
the benefit of this act, within sixty days after he has ceased 
to labor thereon from any cause, or after he has ceased to 
furnish materials therefor, to file with the county clerk of the 
county in which such mine, lode, mining claim or deposit yield¬ 
ing or containing coal, metal or mineral of any kind shall be 
situate, or a claim containing a true statement of his demand, 



[36] 


after reducting all just credits and offsets, with the name of 
the owner or reputed owner, if known, and also the name of 
the person by whom he was employed or to whom he furnished 
the materials, and also a description of the property to be 
charged with such lien sufficient for identification, which claim 
shall be verified by the oath of himself or some other person 
having knowledge of the facts. 

This section requiring a claimant to file a “true statement of his demand, after 
deducting all just credits,’’ a statement not giving a credit for a conceded pay¬ 
ment is fatally defective, even though the credit be unimportant in amount: 
Lewis V. Bcevicm, 4 6 Or. 311 (80 Pac. 417.) 

Section 7444, as amended, and this section provides that every laborer or 
materialman claiming under the act shall take certain steps to perfect his lien : 
and it was held that the phrase “every person who shall perform labor on any 
mine,” etc., applies to ordinary laborers who perform actual, visible toil with their 
hands or muscles, other kinds of service not being expressly mentioned, and does 
not embrace superintendents or managers: Durkheimer v. Copperopolis Copper 
Co., 55 Or. 37 ( 104 Pac. 895.) 

§ 7446. Record of Lien Claims to Be Kept. 

The county clerk shall record said claim in a book kept for 
that purpose, which shall be indexed as deeds and other con¬ 
veyances are required by law to be indexed, and he shall 
receive the same fees therefor as are allowed by law for 
recording deeds. 

§ 7447. Lien Ceases to Bind a Mine, After What Time. 

The liens provided for in this act are preferred liens, and 
are prior to any and all liens, and no sale, transfer, mortgage 
or assignment of any mine, mining claim or other property, the 
subject of the lien under this act, shall divert or defeat the lien 
thereon, as herein provided, except as provided in this act, but 
no lien provided for in this act shall bind any such mine, lode, 
deposit, shaft, tunnel, incline, adit or other excavation, or any 
road, tramway, trail, flume, ditch, line, building, structure or 
superstructure used for or in connection with the working or 
development of any such mine, lode, mining claim or deposit 
for a period longer than six months after the same shall have 
been filed, unless suit be brought in a proper court within that 
time to enforce the same; or, if a credit be given, within six 
months after the expiration of such credit; but no lien shall be 
continued in force for a longer time than two years from the 
time the work is completed by any agreement to give credit. 

§ 7448. Suits to Enforce Liens — Proceeds, Hoiv Apportioned — 
Procedure in Suits. 

Suits to enforce the liens created by this act shall be brought 
in the circuit court. In case the proceeds of any sale under 
this act shall be sufficient to pay all lien holders under it, the 
liens of all persons shall be paid in full, or pro rata, if the 
proceeds be insufficient to pay them in full, and each claimant 


[37] 

shall be entitled to execution for any balance due him after 
such distribution; such execution to be issued by the clerk of 
the court, upon demand, after the return of the sherilT or other 
officer making the sale, showing such balance due. In all such 
suits under this act the court shall,, upon entering judgment 
for the plaintiff, allow as a part of the costs all moneys paid 
for the filing and recording of the lien, and also a reasonable 
amount as attorney’s fees. In all suits to enforce any lien 
created by this act, all persons personally liable and all lien 
holders whose claims have been filed for record under the pro¬ 
visions of Section 7445 shall, and all other persons interested 
in the matter in controversy or in the property sought to be 
charged with the lien may be made parties; but such as are 
not made parties shall not be bound by such proceedings. 
The proceedings upon the foreclosure of the liens created by 
this act shall be, as nearly as possible, made to conform to the 
proceedings of a foreclosure of a mortgage lien upon property. 

Under this section the amount prayed for as an attorney’s fee cannot be added 
to the amount of the lien 'or the purpose of m.aking the requisite amount to give 
a Federal court jurisdiction on removal: Sxvofford v. Cornucopia Mines of Oregon, 
140 Fed. 957. 

§ 7449. Notices — Execution, Manner, and Proof of Posting. 

Said notices provided for in Section 7444, shall be witnessed 
by at least one witness and shall be posted in such places as to 
be sheltered from the weather; shall be encased in a wooden 
frame wdth a glass cover and posted in such manner as can be 
readily seen without opening any box or other receptacle. 
When such notices are thus posted, it shall be the duty of the 
party, or parties, posting such notices to make affidavit before 
any officer authorized to administer oaths that such notices 
have been posted in accordance herewith, and shall file for 
record such affidavit, together with a copy of such notice, with 
the recorder of conveyances in the county where such property 
is located, who shall record the same in a separate record kept 
for that purpose. 

§ 7450. Penalty for Injury to. 

Any person or persons, who shall deface or destroy any of 
the notices mentioned in Section 7444, while the mortgage, 
lease, bond, or other instrument is in effect shall, upon convic¬ 
tion thereof, be deemed guilty of a misdemeanor, and shall be 
punished hv a fine of not less than $50 nor more than $1,000, 
or imprisonment in the county jail of not less than three 
months nor more than two years, or both, in the discretion of 
the court. 


[38] 


SESSION LAWS, 1911 


An Act to establish and create the Bureau to be known as the State Bu¬ 
reau of Mines, defining its objects, powers and duties; providing for 
the appointment of a director, defining his powers and duties; permit¬ 
ting co-operation with Federal and State bureaus in furthering the 
objects of this Act, providing for the publication of the findings of the 
bureau; providing for the collection of exhibits of the natural re¬ 
sources of the State; authorizing entrance upon private lands in the 
prosecution of work of the bureau; and making provisions for the ap¬ 
propriation for the enforcement of this Act. 

Beit enacted by the Legislative Assembly of the State of Oregon: 
Be it enacted by the People of the State of Oregon: 

Section 1. That there be, and is hereby created and estab¬ 
lished a bureau to be known as the State Bureau of Mines. 

Section 2. That the said State Mining Bureau shall have 
for its object and duties the following: 

1. A study of the State mineral resources, with especial ref¬ 
erence to their economic products, including coal, oil, gas, ores, 
of the different metals, fertilizers, building stones, road making 
materials, clays, cement materials, sands, gravels, mineral and 
artesian waters. 

2. A more detailed study of the road making materials of 
the State, v^ith reference to their character, distribution and 
best methods of utilizing the same. 

3. An investigation of the clays in the State, with reference 
to their adaptability for the manufacturing of brick, tile, pot¬ 
tery, etc... as Avell as the testing of all the clay manufactured 
products. 

4. An investigation of limestones, slates, clays, of the State, 
to detej-mine l heir fitness for use as cement materials. 

5. An investigation of fuels of the State, including coal, oil, 
and gas, with reference to their character, distribution, and 
methods of utilizing the same. 

6. A study of the different ores of the State, with especial 
reference to their conservation, concentration, and reduction. 

7. The piei;aration of special reports, with necessary illus¬ 
trations and maps, which shall contain both general and de¬ 
tailed descriptions of the mineral resources of the State. 

Section 3. That the work of the said State Bureau of Mines 
shall be earned on by the department of mines of the Oregon 
State Agricultural College, the equipment and buildings of the 
said department of mines to be available for the work of said 
State Bureau of Mines as herein provided. 

Section 4. That the professor of Mining Engineering or 
head of the Department of Mines of said Oregon State Agri- 



[39] 

cultural College shall be director of the said State Bureau of 
Mines. 

Section 5. That it shall be the duty of the director of the 
State Bureau of Mines to organize and direct the work of the 
State Bureau of Mines in field and office, to determine the 
order, character and publication, the reports of the Bureau, 
and to direct the preparation, printing and distribution of the 
same; to arrange for co-operative work with the various Fed¬ 
eral and State scientific bureaus, where such work shall re¬ 
dound to the interest of the State, and to perform such other 
work as may be necessary to carry out successfully and speed¬ 
ily the work of the survey; to procure and have charge of the 
necessary field and office supplies and equipment and supervise 
the acquisition, care of the distribution of the collections of the 
State Bureau of Mines, and to perform such other work as 
may be necessary to the successful conduct of the Bureau. 
He the same, setting forth the progress and condition of the 
Bureau, together with such other information as may seem 
necessary and useful. 

Section 6. That the State Bureau of Mines is hereby author¬ 
ized to enter into co-operation with any Federal or State scien¬ 
tific bureaus, for the prosecution at joint expense, of such work 
in the State, as shall be deemed of mutual interest and advan¬ 
tage, and under such conditions as said Bureau deems for the 
best interest of the people of the State. 

Section 7. That in order to carry out the provisions of this 
act, it shall be lawful for any person employed hereunder, to 
enter and cross all lands within the State; provided, that in 
so doing no damage is done to private property. 

Section 8. That for the purpose of carrying out this act, 
the sum of one thousand dollars ($1,000) or so much thereof 
as may be necessary, to be is hereby appropriated annually 
beginning January 1st, 1911, out of any money in the State 
treasury not otherwise appropriated. 

Section 9. That the said appropriation shall be paid quar¬ 
terly to the treasurer of the Board of Regents of the said State 
Agricultural College at Corvallis, Oregon, and shall be used 
solely for the purpose of paying the current expenses incurred 
in carrying out the provisions of this act including traveling 
expenses of those actually engaged in the work of the aforesaid 
Bureau, all necessary clerical and laboratory assistance, office 
supplies and expense of printing all reports of said Bureau. 
[L. 1911, c. 227, p. 408.] 



1 



I 


t 


INDEX 

. * 















A 

.1 

\ 

P 

J 


1 








INDEX 


(The figures in the margin refer to pages.) 

MINES AND MINING— page 

AI)andone(l. deemed unappropriated mineral lands . 8 

Appropriation of water for ditches, etc., see water. 17-26 

Are real estate . 8 

Annual statement of corporations . 26-27 

Assessment work by co-owners, affidavits required by delinquent co- ’ 

owners . 

Certificate of delinquency, copy as evidence.r. 14 

Record of . 14 

Fee for . 13 

Force and effect . 14 

Issued when . 13 

Contribution by delinquent co-owner . 11 

Contribution from other owners, proceedings to collect . 11-14 

Fees in, disposition of . 15 

Interest of delinquent co-owner lost, when... 12 

May be performed, when . 11 

Notice to delinquent co-owner, contents . 11 

Return and proof of service . 12 

Service . 13 

Proof of nonpayment by co-owner . 13 

Bell signals, code of, and rules for understanding and enforcing. 15 

Boundaries, how marked . 6 

Bureau of Mines . 38 

Certificate of ownership for nonpayment for assessment work . 13-14 

Chinamen not to hold or work claims : Si 8 , Art. XV, Const. Or. 3 

Claims exempt from taxation prior to patent. 8 

Conveyances subject to provision relating to other real property. 8 

Co-owner, delinquent assessment worked for, see under Assessment 

Work, above .11-15 

May perform assessment work . 11 

Suits between, relating to assessment work . 13 

Defective notice, correction . 10 

Delinquent co-owner, assessment work for, see Assessment Work. 

above .-...11-15 

Discoverer may locate more than one claim . 5-6 

Discovery shaft required . 7 

* Disposing of liquor near, punishment . I 

Ditches and flumes are real property . 9 

Abandonment of . 9 

Appropriation of water for, see under Water . 17-26 

Injury to, punishment . 3 

Not to be impaired by ditches of irrigation districts . 17 

Power of company to condemn land for .31-32 

Rights of way over State land for . 4-5 

P^ees for annual license .26-27 

Grub staking contract, requirements of . 10 

Hours of labor in and penalty . 5 















































[ 44 ] 


PAGE 

Liens, claim, record of . 36 

To be filed within what time .35-36 

What to state .35-36 

. 36 

. 32 

. 37 

37 

. 36 

. 36 

. 36 

. 36 

. 36 

. 36 

. 32 

. 4 


Limitation . 

Notice by owner of leased mines . 

Penalty fcr injury to . 

Posting and affidavit of ... 

Suit to enforce, attorney’s fees allowed as costs .. 

Expenses allow'ed as costs .. 

Parties .. 

Procedure in . 

Proceeds, how apportioned .. 

Where brought . 

Who entitled to lien and for what . 

Liquor, punishment for disposing of, near mine . 

Location, boundaries, how marked . 6 

Notice, affidavit of work to be attached before recording . 7 

recording copy of . 7 

what to contain . 6 

Work . 7 

Mining corporations, license fee and statements .30-31 

Monuments, injury to, punishment .:. 3 

Notice of location . 6 

Affidavit of work to be attached . 7 

Defective, correction of . 10 

Recording copy . 7 

Number of claims allowed to one person . 5 

Ownership divested for non-payment for assessment work and procedure 11-15 
Penalty for failure of company to comply with acts requiring rules, etc. 16 

Pluralit 5 ^ of claims, when and to what extent, allowed. 5 

Power of company to condemn lands, and effect of .31-32 

Real estate, mining claims are . S 

Redemption from execution, amount required to be paid on . 9 

Rules .. 15-16 


Disobedience of. precludes recovery . 

To be signed . 

Subject to prior right to discharge gravel, debris, etc., when 

To what claims act applies . 

Trespass on, punishment . 

Work, what required and w’ithin what time . 


16 

16 

10 

10 

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